Good news for our clients in need of measures for a cross-border debt recovery in civil and commercial matters.
As from January 18th, 2017 a new EU Regulation (nr. 655/2014) is applicable in all Member States of the EU. This Regulation establishes a procedure to facilitate cross-border debt recovery.
In all Member States it is possible to obtain protective measures such as account preservation orders. The conditions for the grant of such measures and the efficiency of their implementation however vary considerably.
From now on it is possible to obtain a European Account Preservation Order. This Order will prevent the creditor’s claim from being jeopardised through the transfer or withdrawal of funds which are held by the debtor in a bank account maintained in another Member State.
It is a condition that the Order is requested to a Court in another Member State than where the bank account to be seized is maintained by the debtor. Another condition is that the creditor is domiciled in another Member State than where the bank account of the debtor is maintained.
For example: the creditor is domiciled in Belgium and his debtor has a bank account in The Netherlands. The creditor can make an application for an Order to a Belgian Court, regardless where his debtor is living. So, if the debtor is also living in Belgium but he maintains a bank account in The Netherlands, it will now be possible to seize the Dutch bank account.
Unknown bank account
In case the creditor has obtained in Belgium an enforceable judgment, which requires the debtor to pay the creditor’s claim and the creditor has reasons to believe that the debtor holds one or more accounts with a bank in The Netherlands, but knows neither the name and/or address of the bank nor the IBAN, BIC, he may request the Belgian court that the ‘information authority’ of The Netherlands obtain the information necessary to allow the bank or banks and the debtor’s account or accounts to be identified.
In The Netherlands this ‘information authority’ is the bailiff. The bailiff is authorized to submit a request for obtaining account information from banks, based in The Netherlands. The banks are obliged to reply to the request expeditiously. The bank is not allowed to inform the debtor.
Rischen & Nijhuis, advocaten
Rotterdam, January 13th, 2017